Silva v. Berryhill

263 F.Supp.3d 342

Michael Andrew SILVA, Plaintiff,

v.Nancy A. BERRYHILL¹ , Acting Commissioner, Social Security Administration, Defendant.

CIVIL ACTION NO. 16–10700–WGY

United States District Court, D. Massachusetts.

Signed July 11, 2017

Francis M. Jackson, Marc D. Pepin, Jackson & MacNichol, South Portland, ME, for Plaintiff.

Shelbey D. Wright, United States Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM & ORDER

YOUNG, D.J.

I. INTRODUCTION

Michael Andrew Silva ("Silva") brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the decision of the Commissioner of Social Security (the "Commissioner") denying his application for disability benefits and Supplemental Security Income (collectively, "benefits"). For the following reasons, this Court affirms the Commissioner's decision.

A. Procedural History

On March 7, 2013, Silva filed an application for benefits, alleging disability since September 10, 2010.² Admin. R. 21, ECF No. 11.³ Silva's application was denied on July 30, 2013, and upon reconsideration, denied again on November 8, 2013. Id. Thereafter, Silva requested a hearing, which was held on August 31, 2015. Id. The hearing officer⁴ concluded that Silva became disabled beginning January 10, 2015, for the purpose of supplemental security income. Id. at 22, 44. On February 26, 2016, the Appeals Council undertook review on its own motion, reversing the hearing officer's decision on supplemental security income and denying Silva benefits. Id. at 1–9.

On April 12, 2016, Silva filed a complaint in the federal district court challenging the Commissioner's final administrative decision denying benefits. Compl., ECF No. 1. The Commissioner filed an answer on July 15, 2016. Answer, ECF No. 10. Silva then submitted a memorandum in support of his motion to reverse the Commissioner's decision, requesting the decision be vacated and the case be remanded for a new administrative hearing. Mot. Reverse Mem. Law ("Pl.'s Mem.") 12, ECF No. 17. The Commissioner filed a memorandum requesting the decision be affirmed, Mem. Law Supp. Def.'s Mot. Affirm Commissioner's Decision ("Def.'s Mem."), ECF No. 23, to which Silva filed his response, Pl.'s Resp. Def.'s Opp'n Mot. Reverse Def.'s Mot. Affirm ("Pl.'s Resp."), ECF No. 30. This Court heard oral arguments⁵ on March 10, 2017, and took the matter under advisement. Electronic Clerk's Notes, ECF No. 32.

B. Factual Background

Silva was 51 years old as of the date of his complaint. Pl.'s Mem. 1. He has at least a high school education and can communicate in English. Admin. R. 42. From June 1, 2012 to January 7, 2013, Silva worked as a school bus and taxi driver. Id. at 24. He has a history of alcohol addiction. Id. at 27–29. Silva alleges that "he suffers from scoliosis, low back pain, inflammatory arthritis, hypertension, gout[,] and ‘fuzzy’ vision." Id. at 25. The hearing officer concluded that Silva was severely impaired as a result of "cervical spondylosis, depression and alcohol dependence." Id. at 24. Additionally, Silva claims that his mental impairments such as depression and anxiety "limit his social functioning and affect his ability to maintain concentration, persistence or pace." Pl.'s Mem. 9. The Commissioner, however, found that Silva's "capacity for standing and walking is only slightly reduced from the full ‘light’ exertional level, from six to four hours." Admin. R. 5. The Commissioner concluded that "because Silva could perform at least one job, that of ticket seller, he was not "disabled" under the Act. Id. at 6.

II. DISCUSSION

A. Standard of Review

The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." Bowen v. Yuckert, 482 U.S. 137, 146, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (citing 42 U.S.C. § 423(d)(1)(A) ). To determine disability, the Commissioner adopts the following sequential five-step process:

1) if the applicant is engaged in substantial gainful work activity, the application is denied;

2) if the applicant does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied;

3) if the impairment meets the conditions for one of the "listed" impairments in the Social Security regulations, then the application is granted;

4) if the applicant's "residual functional capacity" is such that he or she can still perform past relevant work, then the application is denied;

5) if the applicant, given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.

Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing 20 C.F.R. § 416.920 ). The claimant bears the burden of proof up to step 4, after which the Commissioner, at step 5, must "[come] forward with evidence of specific jobs in the national economy that the applicant can still perform." Id.

The Commissioner's decision on disability is to be reviewed de novo to determine "whether the final decision is supported by substantial evidence and whether the correct legal standard was used." Id. at 9 (citing 42 U.S.C. § 405(g) ). This Court may enter a final "judgment affirming, modifying, or reversing the decision of the [Commissioner] with or without remanding the cause for a rehearing." Forney v. Apfel, 524 U.S. 266, 269, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998) (citing 42 U.S.C. § 405(g) ). The Commissioner's determination is conclusive when supported by substantial evidence, i.e., when "a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support the [Commissioner]'s conclusion." Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) ; see also Musto v. Halter, 135 F.Supp.2d 220, 225 (D. Mass. 2001). On the contrary, decisions "derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts," are not conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). Whereas the Commissioner is responsible for weighing conflicting evidence, Seavey, 276 F.3d at 10, this Court may review conclusions of law. Musto, 135 F.Supp.2d at 225.

B. Waiver

The Commissioner argues that the Appeals Council's review of the hearing officer's decision was limited to the narrow issue of whether Silva's residual functional capacity ("RFC") could be characterized at the sedentary exertional level. Def.'s Mem. 3–4. Specifically, at the oral hearing, the Commissioner argued that Silva failed to challenge whether a ticket seller's job was a light job or sedentary before the Appeals Council, and therefore waived the issue on appeal. 3/10/2017 Hearing Tr. 1:4–18, 1:24–3:1. The Commissioner adds that she invited Silva to submit new evidence, which she took into consideration in making her decision. Admin. R. 5, 7–8; Def.'s Mem. 12.

In the context of social security cases, the Supreme Court held that "[c]laimants ... need not [ ] exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues." Sims v. Apfel, 530 U.S. 103, 112, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000).⁶ Because "Social Security proceedings are inquisitorial rather than adversarial[,] [i]t is the [hearing officer]'s duty to investigate the facts and develop the arguments both for and against granting benefits, and the Council's review is similarly broad." Id. at 110–11, 120 S.Ct. 2080 (internal citations omitted).

Here, Silva filed an application for review of the hearing officer's decision on November 20, 2015. Admin. R. 16. In the application, Silva makes a blanket statement objecting to the "multiple errors" made by the hearing officer's decision. Id. Under the relevant regulations, however, Silva was not required to raise specific issues or file briefs. See Sims, 530 U.S. at 113, 120 S.Ct. 2080 (O'Connor, J., concurring) ("[T]he regulations provide no notice that claimants must also raise specific issues before the Appeals Council to reserve them for review in federal court .... [To] request Appeals Council review, a claimant need not file a brief."); 20 CFR § 404.900(b). Given the "informal [and] nonadversary" nature of the review process, Silva's failure to identify specific issues for review before the Appeals Council does not result in "issue exhaustion." Sims, 530 U.S. at 111–12, 120 S.Ct. 2080. Moreover, when notified by the Appeals Council of its decision to review Silva's case, Silva challenged the Appeals Council's intention "to change the exertional category relied upon by the [hearing officer] from sedentary," and requested a new hearing before the Appeals Council. Admin. R. 381–82.

Accordingly, this Court rejects the Commissioner's waiver argument and proceeds to review Silva's challenges to the Commissioner's decision.

C. Silva's Challenges

Silva raises three challenges to the Commissioner's decision. First, he argues that the Commissioner denied him the right to a fair hearing by refusing his counsel further cross-examination of Estelle R. Hutchinson ("Hutchinson"), the vocational expert, and refusing to receive rebuttal evidence. Pl.'s Mem. 4–9. Second, Silva argues that the Commissioner erred in determining his residual functional capacity. Id. at 9–12. Third, he asserts that the Commissioner erred in adopting the hearing officer's finding of mental impairment without a corresponding functional limitation. Id. The Court addresses these contentions in turn.

D. Right to Fair Hearing

Silva maintains that the Commissioner violated his "procedural rights under the agency's own regulations and ... the due process clause of the Fifth Amendment." Pl.'s Mem. 5. Specifically, Silva claims the hearing officer terminated cross-examination of Hutchinson before Silva's counsel could ask additional questions on the job numbers for a ticket seller in Massachusetts and in the United States, id., and whether "[Silva's] functional limitations...